Guidance Note
Work Health & Safety Obligations
for Independent Contractors
March 2015
Today’s workforce is diverse
Most organisations are engaging, will
engage in the future or have engaged
In the past, contracted workers to fulfil
A specific business requirement.
This Guidance Note:
The worker may be engaged directly or indirectly (via a recruitment
firm, for example).
Outlines details about ‘no contracting out’.
Confirms an Independent Contractors duties.
This classification of workers, known as a ‘Contractor’ or
‘Independent Contractor’ has drawn the attention of the
Regulators as part of the revised Australian WHS Model Laws.
Outlines the Regulator’s Expectations.
Provides broad guidelines for administering and
Monitoring Independent Contractors.
As a modern employment issue, this Guidance Note is a
a practical resource to help employers and Independent
Contractors to understand and administer their WHS obligations.
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It is a common myth that ‘contracting out work’
also contracts the business out of their legal WHS
responsibility, This is not the case.
Revised WHS laws aims to remove confusion on who a business
owes a duty of care. It clearly identifies the following as ‘workers’:
Employees
Outworkers, apprentices,
Trainees,
Students gaining work experience,
Volunteers,
Contractors (including Independent Contractors),
Subcontractors
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The PCBU’s duty of care to an
Independent Contractor under
the model WHS Act cannot be
transferred to another party by
way of contract.
“No contracting out” is a core element of model WHS Act that directly affects the engagement of
Independent Contractors. In practice, this means that a PCBU cannot use a contract to limit or modify their
statutory obligations. An attempt made by a PCBU to transfer the PCBU’s duty to an Independent Contractor
via a contract, will cause that provision to be invalid.
Although Victoria and WA have not adopted the model WHS Law, existing laws in these States does not enable
an employer to contract out of statutory health and safety obligations simply by including terms in a
contract that attempt to transfer those obligations to another party.
In Victoria and WA, the
‘employer’ is not able to
include terms within a
contract that attempt to
transfer health and safety
obligations on to another
party.
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Whilst a PCBU who engages an Independent Contractor has a primary duty of care to the Contractor., it is just as important to be aware that as a Contractor, you have specific duties under the Model WHS A
specifically Section 28 – duties of workers!
Comply with any policy or procedure
the PCBU notifies to you relating to
health and safety in the workplace.
Comply with any reasonable
instruction given by the PCBU
(for the purposes of the PCBU
complying with a duty of the
Act)
Take reasonable care for your
own health and safety
Take reasonable care that
your acts or omissions do not
adversely affect the health
and safety of others.
Contractor
Duties
If you have workers whilst retained by another PCBU, you are not absolved of your duty of care to your own workers and others in the workplace. This means that there may be complex and
overlapping duties of care operating in the same workplace. The application of identifying all duty holders and consulting, co-operating and co-ordinating health and safety activities is fundamental to
duty holders complying with their duty of care.
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Maintain a
work environment
without risk to
contractors health
and safety
The WHS law in each State and Territory in Australia is enforced by a Regulatory
body. They take the lead role in the promotion and enforcement of health and
safety in the applicable States/Territories workplaces.
Broadly, the responsibilities of the Regulator include:
Helping avoid workplace injuries occurring
Enforcing WHS health and safety laws
Maintain safe
systems of
work affecting
contractors
Provide contractors
with adequate information,
instruction, training and
supervision to protect them
from risks to health and
safety in work carried out
for your business
Each regulatory body has a team of Field Officers (Inspectors) who attend
workplaces and enquire into WHS breaches. Inspectors enquiring into
Independent Contractor Management at a PCBU’s workplace will be looking
for evidence of the PCBU’s process for managing the health and safety of
Independent Contractors they retain. The evidence that the PCBU provides
must link back and satisfy the elements of Primary Duty of Care.
Consult,
cooperate and
coordinate with
contractors on work
health and safety
matters
PRIMARY DUTY OF CARE
All contractors engaged to carry
out work activities are protected
and exposed to risk to their
health and safety
Monitor the
work conditions and
health of contractors
whilst engaged to
carry out work for
your business
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There are many questions that will be asked by an Inspector when they are enquiring into a PCBU’s management of Independent Contractors. These enquiries are made to determine
whether the PCBU has a ‘safe system of work’ for the engagement of Independent Contractors. A PCBU would be expected to provide supporting evidence to the answers provided to
the Inspector.
Below are common questions that would be asked by an Inspector enquiring into a PCBU’s management of Independent Contractors...
Does the
Do you
have a documented Contractor
management procedure?
Does the
procedure provide for the induction of contractors,
subcontractors and their employees?
procedure provide for
monitoring of contractors
to ensure compliance
with (SWMS) and relevant
Does the
legislative requirements?
procedure provide for
the assessment of the
proposed Contractors WHS
arrangements prior to their
engagement?
Does the
procedure require the contractor to
conduct Safe Work Method Statements
(SWMS) for high risk construction work?
What
Contractor
consultation, co-operation and
co-ordination arrangements are
in place?
Are the
Is there
How do
How do
Do you
Contractors
competencies checked
before starting work
a system for assessing the
suitability of Contractors’
equipment, material and
substances?
you assess whether Contractors
are complying with SWMS and
legislative requirements?
you deal with
Contractor
have a system for recording and
following up on outcomes of
inspections and audits?
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non-compliance?
Select Contractors
based on their expertise
and health and safety
record (e.g. applicable
licenses).
Obtain and review all
relevant contractor
documentation
including competencies
and safe work method
statements (SWMS)
(if applicable).
Provide all Contractors
engaged to undertake
work, with a health and
safety induction prior
to commencing work.
Provide Contractors with
information, instruction
and training that is easy to
understand and relevant
to work that they are
engaged to perform.
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Consult, co-operate
and co-ordinate
activities with
Contractors and
others involved
in the work.
Monitor work activities
of Contractors to ensure
their work activities are
carried out in accordance
with your Contractor
management plan/
procedure and
relevant WHS Act &
Regulation provisions.
The person/company engaging the Independent Contractor is the PCBU and the Independent Contractor
is a ‘worker’ of the PCBU.
The PCBU owes a Primary Duty of Care to the Independent Contractor when the PCBU:
Directs or influences work carried out by the Independent Contractor
Engages or causes to engage an Independent Contractor to carry out work
(including through subcontracting)
Has management or control of a workplace.
The PCBU must meet its obligations, so far as is reasonably practicable, to provide
a safe and healthy workplace for Independent Contractors by ensuring:
Safe systems of work
A safe work environment
Accommodation for workers, if provided, is appropriate.
Safe use of plant, structures and substances
Facilities for the welfare of workers are adequate
Notification and recording of workplace incidents
Adequate information, training, instruction and supervision is given
Compliance with the requirements under the work health and safety regulation
Effective systems are in place for monitoring the health of workers and workplace conditions.
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To fulfil the Primary Duty of Care when retaining an independent Contractor, the PCBU is required to develop, implement and Independent Contractor, Management System. In practice, this is a process that defines
how an independent Contractor is selected, qualified and monitored.
Determine and define responsibilities
in the contractor management process
Contractor Pre-Qualification
Contractor Classification
& Qualification
Contractor Induction
Commencement of Work
Monitoring and completion of Works
Re-Qualification
Identify persons in the business who will be involved in the management of the Contractor
and define their roles and responsibilities within the Contractor management plan/procedure.
Develop a pre-qualification questionnaire detailing WHS criteria for Contractors to comply with in order to deliver services to your business.
Establish a process to classify the type of work the pre-qualified Contractor will be undertaking within the scope of works and gather supporting
information form the Contractor to demonstrate suitable experience and qualifications including licences, permits, registrations, and insurances
as well as Safe Work Method Statements. The process should be completed by the Contract Manager and the pre-qualified Contractor.
Develop an induction program and process specifically for Contractors. The process should
ensure that inductions are delivered to Contractors prior to commencing work.
Develop a process for Contractors to sign in/out at the site of works. There should also be a contact from the business for the Contractors to
report to prior to works commencing to discuss the work to be performed. The process should also ensure that Contractors are required to
review and amend Safe Work Method Statements prior to work commencing.
The Contractor management plan/procedure should provide a process for a key stakeholder to monitor
the works being undertaken by the Contractor and ensure a WHS non-compliance process.
The Contractor management plan/process should address the requirements for regular re-qualification of Contractors.
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